As part of our continuing commitment to provide outstanding representation and to serve as an information resource, we wish to inform you of a recent decision concerning an accident that occurred inside a store and whether the store could be held accountable.

Most retail stores of a certain size now have motorized shopping carts in order to help those shoppers who may not be able to walk comfortably. A recent case involving a motorized shopping cart demonstrates what can happen. In Thomas v. Costco Wholesale Corp., a case in which we represented the defendant, the plaintiff was inside a Costco Warehouse when she was struck from behind by a motorized shopping cart operated by another unidentified male customer. A Member First Report of Incident indicated that the shopper lost control of the motorized chair and slammed into the back of the right ankle of the plaintiff. Plaintiff commenced an action against Costco.

Plaintiff alleged that Costco breached its duty to maintain its property in a reasonably safe condition by allowing patrons to use motorized shopping carts. The plaintiff alleged that the absence of any protocol as the use of the carts indicated negligence. Costco moved for summary judgment. Costco argued that it had no duty to protect against the unforeseeable actions of the unidentified operator of the motorized shopping cart. Costco noted that the plaintiff’s deposition testimony established there was no evidence that the subject cart was defective or that the unidentified motorist’s operation of the cart was a concern. In addition there was no sign that Costco knew or should have known of the manner in which the shopping cart was being operated. Finally, plaintiff could not identify that any dangerous condition existed and failed to identify the subject cart or the defect that caused the motorized cart to strike her.

In opposition to summary judgment, plaintiff alleged that the testimony demonstrated that Costco breached its duty to maintain its property in a reasonably safe condition in allowing patrons to use the motorized shopping carts. Plaintiff argued that there were no accident prevention policies in place for the use of the carts and there was no requirement in order for a customer to use such a cart. Plaintiff argued that the absence of any protocol as to the use of the carts raise an issue of fact as Costco’s negligence. In addition, the use of the carts by a patron unskilled in such operation was not readily observable to which the plaintiff should have been aware prior to the accident.

The Court granted Costco’s motion for summary judgment. The Court noted that there was no evidence that the unidentified patron exhibited careless or dangerous behavior before the accident in the operation of the motorized cart. Nor was there any evidence that the defendant had received complaints about carts being misused or improperly operated. Thus, there was no evidence that plaintiff’s injury was a foreseeable risk of Costco’s actions in providing motorized carts. The Court found that Costco had made a prima facie entitlement to summary judgment that it neither created the condition nor had actual or constructive notice of the condition that caused plaintiff’s accident. The Court noted that the evidence demonstrated that plaintiff’s accident was caused by an unexpected and unforeseeable occurrence that Costco had no opportunity to control, and for which it could not be held responsible.

The Court rejected outright plaintiff’s contention simply allowing patrons to use motorized shopping carts in and of itself constitutes negligence. Nor was there any evidence that the subject motorized cart was dangerous or defective.

As this case demonstrates, when insurance companies and self-insureds put plaintiffs to their proof by moving for summary judgment, specious and overreaching claims are rejected. This teaches plaintiffs a powerful lesson in evaluating which cases to take.